Om Prakash and Others Vs Dwarka Prasad and Another

S.S. Jha, J.

In this revision, an application I. A. 3963/03 is filed by the petitioners for converting this revision into miscellaneous appeal under Order XLIII, Rule l(u) of the Code of Civil Procedure. The application was opposed by the respondents inter alia contending that the scope of appeal is different from the scope of revision, and therefore, application and revision be dismissed. Counsel for the respondents placed reliance on the single Bench decision of this Court in the case of Food Corporation of India and Another Vs. Munnilal Singh and Another, whereas counsel for the petitioners has referred to the decision of the single Bench of this Court in the case of Shivkumar v. Ramkatori (1977 JLJ 33). Since two conflicting views were brought to the notice of the single Bench, single Bench has referred the dispute for decision in accordance with law by the Division Bench.

Question involved in the case is whether revision can be converted into appeal and vice versa.

Counsel for the petitioners submitted that this question has been settled long back and this Court time and again is permitting conversion of appeal into revision and revision into appeal. While delivering the later judgment in the case of Food Corporation of India (supra) single Bench has not considered the previous judgments on this subject and ignored the principle of stare decisis. Long settled view has been upset in the case of Food Corporation of India (supra). He submitted that against the order of remand by the Additional District Judge, counsel was of the opinion that order was in exercise of inherent powers by the first appellate Court, therefore, revision was filed, however, on the objection of the respondents, counsel for the petitioners minutely examined the position and found that the order is appealable under Order XLIII, Rule 1(u) of the CPC (hereinafter, referred to as the "Code"). Counsel for the petitioners, therefore, submitted that the judgment in the case of Food Corporation of India (supra) has not laid down the correct law and single Bench has not considered the previous judgments on the point. In support of his contention, counsel for the petitioners has referred to the judgment in the case of Reliable Water Supply Service of India v. Union of India (1971 SC 2183). This case relates to dispute under the Arbitration Act. Though the dispute was within the ambit of Section 33 of the Arbitration Act, but the trial Court treated the dispute u/s 5 of the Arbitration Act. Thereafter, against the order passed by the trial Court, Union of India filed an appeal in the High Court. Appeal was contested on various grounds and one of the grounds was that appeal was not maintainable. High Court accepted the contention and converted the appeal into revision u/s 115 of the Code and decided the case exercising the revisional jurisdiction. Thereafter, objection was raised that appeal could not be converted into revision. It is held in this ease that the High Court was right in converting the appeal into revision.

Counsel for the petitioners submitted this Court has taken; a view that even the revision can be heard :as an appeal or appeal can be heard as a revision and relied upon the judgments in the cases of Gauri Shankar Vs. Firm Dulichand Laxmi Narayan, Similar view was taken in the case of Rashid Khatoon v. Abdul Rashid Khan (1969 MPLJ 587) and Sir Madhaorao Ganesh Deshpande v. Keshao Gajanan Huddar (AIR 1941 Nag 304). Counsel for the petitioners submitted that the law laid down in the case of Food Corporation of India (supra) has not considered the previous judgments of this Court and is against the settled principles of law laid down by this Court and the judgment does not lay down the correct law. He prayed that the application for conversion of the revision into appeal be allowed.

Shri D. D. Bansal, learned counsel appearing for the respondents opposed the application and submitted that there is distinction between the appeal and the revision. In support of his contention, he referred to the judgments in the cases of Ram Avtar and others Vs. Ram Dhani and others, ;, State of Kerala Vs. K.M. Charia Abdullah and Co., and Hari Shankar v. Girdhari Lal (AIR 1963 SC 698). He further submitted that nature and scope of High Court''s revisional jurisdiction is different from the appellate jurisdiction and placed reliance upon the judgment in the case of Manick Chandra Nandy Vs. Debdas Nandy and Others, Counsel for the respondents then referred to the judgment in the case of Chittaranjan Crochet (P) Ltd. v. Lakshmoni Dass (Smt) and submitted that if a parry had any doubt then the party could file appeal as well as revision. He submitted that if the order impugned is revisable, it cannot be converted into an appeal as, there is no presentation of appeal in the eyes of law. Revision as filed itself was not maintainable, therefore, revision which was not maintainable and was bad at its initial filing cannot be converted into an appeal. The powers should not be exercised liberally to convert the revision into appeal. In support of his contention, he referred to the judgment in the case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61). He referred to the judgment of the Madras High Court in the case of T.K. Ramanujam Pillai Vs. Alagiamannar Rajagopalaswami Deity Palayam Kottai and Another, wherein it is held that second appeal could not be converted into revision in exercise of discretion. He submitted that if the revision is not maintainable, petitioner can file appeal explaining the delay by filing an application u/s 14 of the Limitation Act alongwith memo of appeal. In support of his contention, he referred to the judgment in the case of Rakesh Shyamlal Samaiya v. Ajay Kumar Babulal Jain (2000 (3) MPLJ 484). However, he referred to the judgment in the case of Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, wherein in para 7 of the judgment, it is held that against the order of eviction, appeal u/s 96 of the Code was maintainable and second appeal u/s 100 of the Code was maintainable. It is held that against the judgment, revision was not maintainable and the remedy was by way of second appeal alone. High Court entertained the revision and allowed the case in the absence of objection against maintainability of revision petition. Apex Court held that "to meet the ends of justice if the revision is to be treated as second appeal u/s 100, CPC, then requirement of existence of substantial questions of law must be satisfied." It is held that if the revision is converted into second appeal, then requirement of substantial question of law must be satisfied, otherwise, revision cannot be converted into second appeal.

Counsel for the respondents then submitted that once the revision is held to be not maintainable then petitioners are free to prefer an appeal and explain the delay in filing the appeal by moving an appropriate application under the Limitation Act. He referred to the judgment in the case of Rakesh Shyamlal Samaiya (supra). He submitted that in the light of the provisions of Section 104 and Order XLIII, Rule 1 of the Code of Civil Procedure, the order impugned is appealable and revision as filed is not maintainable and it cannot be converted into an appeal.

We have considered the arguments of both the parties. It may be mentioned that this Court was suo motu converting revision into appeal and appeal into revision while exercising its inherent jurisdiction. This view was taken in the cases of Gauri Shankar, Rashid Khatoon and Shivkumar (supra). With regard to discretion of the Court in converting appeal into revision, Bombay High Court in the case of U.D. Patel and Company v. C.M. Milligam and Clarke Ltd., AIR 1956 Bombay 598 has held that appeal can be treated as an application for revision. Full Bench of the Patna High Court in the case of Maharaja Bahadur Ram Ram Vijay Prashad Singh Vs. Kishun Singh and Others, has held that revision u/s 115 of the Code was not maintainable against the order which was appealable. In this case, an appeal preferred in a case in which no appeal lay was treated as an application under revision as the question argued was one of the jurisdiction and the Full Bench held that the memorandum of appeal may be treated as a revision as the question relating to jurisdiction is involved in the case.

Division Bench of Calcutta High Court in the case of Banka Behari Deb Vs. Birendra Nath Dutta and Another, has held that where no appeal lies from an order, memorandum of appeal can be treated as an application for revision. Where revision has wrongly been preferred it has been permitted to be converted into appeal in the case of Shivkumar (supra). Bombay High Court in the case of Rupam Pictures v. Dr. Brijmohan AIR 1977 Bombay 425 has held that when revision was wrongly preferred, revision was permitted to be converted into an appeal against the order. It is held that in case where appeal lies but revision application is wrongly preferred, the Court has wide discretion to treat it as an appeal if conditions laid down by the law are fully satisfied.

In the case of Bahori Vs. Vidya Ram, it is held that if revision is filed within limitation prescribed for appeal, then prayer for converting revision into appeal after expiry of period of limitation is maintainable. It is held that there is no specific provision for conversion of an appeal into a revision or vice versa. Consequently, the exercise of power has to be only under the provisions of Section 151 of the Code. The inherent powers of the Court permit the Court to make such orders as may be necessary for the ends of justice. The power is undoubtedly discretionary and is to be exercised in a proper case. If the interest of justice requires the passing of such an order or to prevent the abuse of the process of the Court, the Court would be fully justified in passing an order under this provision. It is further held that there is nothing like a period of limitation for making an application for conversion of an appeals into revision or vice versa. All that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be. Even otherwise, there would be very few cases, were the conversion would be sought before the expiry of the period of filing the appeal. In most cases, the point would emanate after an objection had been tiled or made by the other side. It would undoubtedly be open to the Court considering the question of conversion to satisfy itself that the prayer was bone fide and that there was no unusual delay.

In the case of Narmadabai Narayanshet v. Hidayatalli Saheballi (AIR 1949 Bombay 115), Gajendragadkar, J. (as he then was) has held that considering the question of conversion of appeal into revision, second appeal before the High Court was not maintainable and it was allowed to be converted into revision after preliminary objection was raised that the suit was cognizable by the Courts of Small Causes no second appeal would have been competent against the said decree since the amount or subject matter of the original suit did not exceed Rs. 500/-. Expression "Suit" used in Section 102 of the Code includes execution proceedings with the result that if the suit is of the nature described in Section 102, no second appeal would lie from an order made in execution of the decree passed in such a suit unless the value of the suit exceeds Rs. 500/-. The test in such cases is not the nature of the proceedings in execution, but the nature of the suit in which the decree sought to be executed was passed. That being so, the preliminary objection is, I think, well founded and must be accepted. Prayer was made by counsel for the petitioner that in view of the importance of the question of law which is being raised in the appeal, he should be permitted to convert his second appeal into a revisional application. It is clear that question of Jaw which arises for decision in these proceedings is of considerable importance, and I think it would not be improper to deal with the said point after allowing the appellant to concert his second appeal into a revisional application.

In the case of Bar Council of India New Delhi v. Manikan Tiwari (AIR 1983 All 357) against an order allowing the petition for review on the ground of mistake apparent on the face of record, appeal was preferred it was held not maintainable but it is held that the appeal could be treated as revision. It was held that rejecting the appeal on the ground of maintainability would mean to call upon the appellant to challenge the impugned order by means of a revision and this will not serve any purpose and the Court permitted the appeal to be converted into a revision.

Single Bench of Kerala High Court in the case of N. Karuppan v. M. Sankaran Nair (AIR 1973 Kerala 28) has held that conditional order under Order IX, Rule 13, CPC is not appealable and appeal lies from a final order. It is held that appeal filed when no appeal lay, appeal when technically incompetent, can be treated as a revision and delay can be condoned. Similar view was taken by the Division Bench of Andhra Pradesh High Court in the case of Narendra Kumar Mehta Vs. Suraj Mehta, While considering the amendment in the Hindu Marriage Act, it is held that no appeal lay against an order passed u/s 24 of the Hindu Marriage Act. However, since the order is an interim order, High Court can treat the appeal as revision invoking powers u/s 115 of the Code.

In the case of J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. Collector of Central Excise, appeal was filed by an aggrieved party in the Apex Court under the Central Excise and Salt Act, 1944. A preliminary objection was raised by the Revenue that no such appeal was maintainable. Though the Supreme Court upheld the objection, it did not dismiss the matter and observed (at page 1273 of AIR) :

"We are not disposed to dismiss this appeal on that technical ground at this stage because the appellant could in that situation have sought for special leave under Article 136 of the Constitution. With all the papers available for deciding the question involved in this appeal, we do not think it proper to drive the appellant to file another SLP for that purpose, particularly because of the lapse of almost nine years since the filing of this appeal. We, therefore, treat this appeal as one filed by special leave."

After the 1977 amendment in Section 102 of the Code it is held that if second appeal is filed by the party aggrieved against the decision rendered by the first appellate Court, in appropriate cases, on objection being raised, the High Court may, in its discretion, allow conversion of second appeal into revision. This view has been taken by the Orissa High Court in the case of Lokanath Maharana Vs. Dr. A.B. Mohanty,

However, in the case of Food Corporation of India (supra) it is held that in view of the amendment in Section 102 of the Code, second appeal was not maintainable being the suit valued less than Rs. 25000/-. Though the appeal was filed before 1-7-2002, it is held that second appeal was not maintainable. Further it is held that appeal cannot be converted into revision as the scope of both the sections is different. It may be mentioned that the Apex Court while considering the question of conversion of revision into second appeal has considered the question that revision can be converted into second appeal, if substantial question of law arise in the case. However, while converting appeal into revision, question of substantial question of law will not arise. It is true I that scope of appeal and revision is different, but the Courts have been permitting conversion of appeal into revision and revision into appeal. Therefore, rigid view that appeal cannot be converted into revision or vice versa will not be in the interest of justice. A litigant cannot be penalised on account of technical error or mistake committed by the counsel. To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision in to appeal or appeal into revision should be passed :

(i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal.

(ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution, was within the limitation and if so, said permission can be granted.

(iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings.

We are of the considered opinion that in the case of Food Corporation of India (supra) correct law has not been laid down. In this judgment, previous judgments on the point and settled position of law of this Court has not been considered. Ignoring the principle of "stare decisis" settled practise has been unsettled without considering previous judgments. We have considered the earlier views of this Court and the judgments of other High Courts and that of the Apex Court and we hold that in this case, revision can be converted into miscellaneous appeal. Application LA. 3963/03 is allowed and the office is directed to register this revision as miscellaneous appeal and list before appropriate Bench.

Reference is answered accordingly.